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(Chancery Division, David Richards J, 9 October 2013)
A company incorporated in Luxembourg (but whose COMI was in England) presented a up petition for its own winding-up on the grounds that its winding-up would be just and equitable and applied for the appointment of provisional liquidators.
The company had carried on the business of raising funds through the issue of bonds governed by Luxembourg law, and the investment of such funds in the purchase of life insurance policies in the USA, though a trust constituted under the law of Delaware. The company had initially taken the position that it was not required to be recognised and regulated by the relevant regulator in Luxembourg, but, having taken advice, it applied for recognition in 2009. That application was refused and the regulator indicated an intention to dissolve the company. The company did not have sufficient funds to service and repay its bonds in full, but the terms of the bonds provided that bond-holders could only recover sums due from available funds held by the company, and could not attach assets or apply for a winding-up order.
In the circumstances, it was appropriate to appoint provisional liquidators.
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